R Scott Turicchi et al vs Randy Quaid et al
R Scott Turicchi et al vs Randy Quaid et al
Case Number
19CV06268
Case Type
Hearing Date / Time
Mon, 11/06/2023 - 10:00
Nature of Proceedings
Motion: Judgment; Motion: Relief from Improperly Filed Criminal Evidence
Tentative Ruling
# 19CV06268 R. Scott Turicchi, et al., v. Randy Quaid, et al.,
Hearing Date: 11/6/2023
HEARINGS: Motion by the Quaid defendants for judgment on the pleadings
Motion by the Quaid defendants for relief from improperly filed criminal evidence
ATTORNEYS: Craig S. Granet / Claire K. Mitchell of Rimon, P.C. and Andrew W.
Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs
R. Scott Turicchi and Lannette C. Turicchi
Grant Puleo / Karen L. Alexander / Daniel M. Doft of Duane Morris LLP
for defendants Randy Quaid and Evgenia Quaid
TENTATIVE RULING:
For reasons more fully articulated below, both motions will be denied in their entirety.
Background: This action was commenced on November 25, 2019, by the filing of the original complaint by plaintiffs R. Scott Turicchi and Lannette C. Turicchi. At that time, the complaint alleged a cause of action to quiet title in plaintiffs in property located at 1355 East Mountain Drive in Santa Barbara, and for declaratory relief that defendants Randall Quaid and Evgenia Quaid have no interest in that property. It alleged that the Turicchis obtained title to the property pursuant to a Grant Deed recorded on August 21, 2007, and that the Quaids claimed an interest in the property. The Turicchis filed their operative First Amended Complaint (FAC) on February 14, 2022. The FAC continued to allege causes of action to quiet title and for declaratory relief, and added a cause of action for slander of title. The Turicchis’ first and second causes of action to quiet title and for declaratory relief, as alleged in their FAC, were summarily adjudicated in their favor after hearing on March 27, 2023, leaving only the cause of action for slander of title.
The FAC alleges that plaintiffs are the owners of property at 1355 East Mountain Drive in Santa Barbara, California, who own the property based upon (a) the Grant Deed from Bruce Berman and Nancy Goliger Berman to plaintiffs, recorded on August 21, 2007, and (b) by virtue of the fact that they have occupied and claimed the property continuously for five years from August 2w1, 20077 through August 20, 2012, and thereafter through the present, and have timely paid all state and county taxes that have been levied and assessed upon the property. It alleges further that the Bermans owned the property based upon (a) a Grant Deed from defendants, recorded January 15, 1992, and (b) on information and belief, by virtue of the Bermans occupation and claim of the property continuously for five years from January 15, 21992 through January 14, 1997 and thereafter until August 20, 2007, and timely paid all state and county taxes that were levied and assessed upon the property.
The cause of action for slander of title incorporated those allegations, and alleged that commencing at least as of November 26, 2016, and continuing thereafter, defendants willfully, maliciously, and without privilege or justification published false and disparaging statements concerning Plaintiffs’ title to the property, including that defendants, and not plaintiffs, were the rightful owners of the property. Their false and disparaging statements have impaired the marketability of the property, in an amount according to proof. The publication of the false statements was motivated by malice and intended to cause injury to plaintiffs, entitling plaintiffs to punitive damages. Unless prevented from continuing to make the false and disparaging statements that they are the owners of the property and not the Turicchis, plaintiffs will suffer irreparable injury in the continued impairment of the marketability of the property. Plaintiffs have no adequate remedy at law to prevent defendants from continuing their wrongful conduct.
With respect to the slander of title cause of action, the FAC prayed for damages for the impairment of the marketability of the property, punitive damages, and an injunction enjoining each of the defendants from continuing to make false and disparaging statements that they, and not the Turicchis, are the owners of the property.
During the pendency of the action, the Quaids maintained cross-complaints at various times. Their most recent cross-complaint, the Fifth Amended Cross-Complaint (5ACC) was filed through counsel on May 3, 2023.
On June 12, 2023, the Turicchis filed a demurrer to and motion to strike the 5ACC. The motion to strike sought to strike the entire 5ACC based upon the Fugitive Disentitlement Doctrine, contending that because the Quaids are fugitives from justice, they are not entitled to use the resources of the courts. In support of the motion, they requested judicial notice of several documents, including the court’s 2014 ruling on a Motion to Quash Subpoena For Production of Business Records in Action Pending Outside of California, brought by the Sheriff’s Department in Case No. 1467545, entitled Randy Quaid et al. v. American Surety Company, in which the court quashed the Quaids’ subpoena in part based upon the fugitive disentitlement doctrine; and a screenshot from the records of the Felony Fugitive Unit of the Santa Barbara County Sheriff’s Department that showed that both Randy Quaid and Evi Quaid were still fugitives on Felony Warrant No. 1363847, and that Evi Quaid was also a fugitive on Misdemeanor Warrant No. 1299916. The computer information reflected the gender, height, weight, hair color, eye color, and date of birth for each of the Quaids.
On that same date, then-cross-defendants Lawyers Title Company and Fidelity National Title Insurance Company also filed a demurrer to and motion to strike the 5ACC. Their demurrer contended, among other things, that the Quaids were precluded from bringing the action because of the fugitive disentitlement doctrine. In support of their demurrer, they requested judicial notice of various matters, including what they described as the current booking information regarding People v. Randall Rudy Quaid, and People v. Evi Hellena Quaid, Case No. 1363847. That information included a screenshot which showed the Quaids’ release from custody on 4/26/2010, and included the apparent mug shots and date of birth information for the Quaids.
On July 11, 2023, the Quaids brought an ex parte application to strike that evidence, and to strike the fugitive disentitlement argument from the cross-defendants demurrers or motions to strike. They sought to strike those exhibits on the basis that they were prejudicial (arguing the merits of the fugitive disentitlement doctrine, and denying that they are fugitives at all), and that they contain “highly sensitive biometric information, such as the Quaids’ birth date, eye color, hair color, and unrelated mugshot,” that should not be in the public record. They argued that the alleged criminal vandalism and trespass occurred in 2010, and because they were the true, lawful owners of the property on that date, they had a right to be there and could not be guilty of those crimes. The Turicchis filed opposition to the ex parte application, after which the Quaids filed a reply, and the Turicchis filed a supplemental opposition.
On July 19, 2023, the Quaids dismissed their 5ACC. After the dismissal, the demurrers and motions to strike of the various cross-defendants were withdrawn.
On August 2, 2023, the Quaids filed yet another ex parte application, to remove or withdraw the subject exhibits and the demurrers and motions to strike that relied on them, to impose a discovery order prohibiting parties and their counsel from communicating ex parte with the entities who had provided them with those materials, and an order that counsel destroy copies of the materials. The Turicchis and Lawyers’ Title both opposed the application.
At a hearing on August 3, 2023, the court denied the ex parte application, without prejudice, and encouraged the parties to meet and confer and to submit a stipulation that would seal the material in question. The court noted that it was not necessary to have brought an ex parte application, when a motion to seal would have been adequate. The court also found disturbing that a stipulation was offered to take care of the issues, but the Quaids’ counsel refused it. Ultimately, the court denied the ex parte application, with the belief that ex parte relief was unwarranted.
Motion for judgment on the pleadings: On August 31, 2023, the Quaids moved for judgment on the pleadings with respect to the Turicchis’ cause of action against them for slander of title, on several bases, and seeking to have the motion granted without leave to amend.
First, they contend that the cause of action was mooted by the court’s summary adjudication order, because slander of title cannot be applied to title acquired by adverse possession that it not yet established by decree when the alleged slanderous statements are made, citing CalJur3d, and Howard v. Schaniel (1980) 113 Cal.App.3d 256, 265. Since the Turicchis did not obtain marketable title under the court’s April 10, 2023 order granting summary adjudication to quiet title by adverse possession, the Quaids’ alleged conduct prior to that date cannot support a slander of title claim.
They contend the FAC does not sufficiently allege a slanderous statement, contending that the allegation that defendants contended that they, and not plaintiffs, were the rightful owners of the property is insufficient. They contend that the words constituting the alleged slander must be specifically identified, if not pleaded verbatim. (Kahn v. Bower (1992) 232 Cal.App.3d 1599, 1612, fn. 5.)
They further contend the FAC does not sufficiently allege falsity, which requires a plaintiff to plead and prove that the defendant intends for the publication to cause harm and should recognize it is likely to do so, and knows that the statement is false or acts in reckless disregard of its truth or falsity, citing Witkin. The FAC’s conclusory allegations that the Quaids acted willfully, maliciously, and without privilege or justification, are insufficient. They contend a slander of title claim must allege malice to state a cause of action, citing Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630. To survive judgment on the pleadings, a complaint must contain factual allegations supporting legal conclusions.
The Quaids further contend that the FAC does not contain facts sufficient to allow the Quaids to ascertain whether their statements are without privilege or justification, and does not sufficiently plead damages with requisite particularity.
Finally, the Quaids contend that the Turicchis cannot plead around the statute of limitations. The FAC alleges that the false and disparaging statements regarding title to the property were published commencing at least as of November 26, 2016, and continuing thereafter. They contend the cause of action can only be pleaded if plaintiff alleges plainly the date of the “accident” and other facts with reasonable particularity, citing Corum v. Hartford Acc. & Indem. Co. (1945) 67 Cal.App.2d 891, 895.
In support of their motion, the Quaids seek judicial notice of a transcript on an August 3, 2023 hearing on an ex parte application, and a November 3, 2021 recorded Deed of Trust.
Turicchi opposition The Turicchis have opposed, contending that their slander of title claim is adequately alleged. To the extent the objections raised in the motion related to ambiguity or uncertainty of the allegations, thee objections were waived by filing to demurrer to the claim. (Code Civ. Proc., § 430.80(a); Stockton Newspapers, Inc. v. Members of Redevelopment(1985) 171 Cal.App.3d 95, 103.)
The Turicchis further contend that their FAC sufficiently pleaded a slander of title cause of action. First, with respect to the claim that a slander of title claim cannot be based upon statements made before title is acquired by adverse possession, the Turicchis note that their FAC alleged alternative bases upon which they acquired ownership, including both by Grant Deed and by adverse possession. The validity of the deed has not yet been adjudicated, and supports the continued maintenance of the slander of title cause of action.
Further, the Turicchis contend they have adequately alleged each element of a slander of title cause of action, contending that the allegation of ultimate facts is sufficient. (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1376; Doe v. City of Los Angeles(2007) 42 Cal.4th 531, 550.) They alleged that commencing at least as of 11/26/2016, and continuing thereafter, defendants willfully, maliciously and without privilege or justification published false and disparaging statements concerning the Turicchis’ title to the property, including that they and not the Turicchis were the rightful owners of the property (¶ 17), and that publication of the false statements impaired the marketability of the property in an amount according to proof (¶ 18). Evidentiary level facts are not required. (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872.)
Most cases cited by the Quaids do not involve motions for judgment on the pleadings, and are cases in which evidentiary showings were made, or trial was held. Many did not involve slander of title claims, and instead discussed the requirements for other causes of action. Even those cases cited that involved slander of title claims hold it is sufficient to state the substance of the slanderous statements, as opposed to their exact language. The Turicchis contend that they did so. Further, given that the Quaids made the statements, they are in a better position to know precisely what they said, and less particularity is therefore required. (Okun v. Superior Court (1981) 29 Cal.3d 442, 458.) They further contend that Appel v. Burman (1984) 159 Cal.App.3d 1209, is dispositive. In Appel, only a declaratory relief cause of action had been expressly stated, but the court found it sufficient to state a cause of action for slander of title. Here, the Quaids have known since February 2022 that they would have to defend against slander of title.
Finally, in the event the court grants the motion, the Turicchis request leave to amend.
Quaid reply The reply contends the opposition provided no legitimate response, and contends the Turicchis have flip-flopped, after arguing in their demurrer to the Quaids’ now-dismissed defamation cause of action that more specificity in the dates statements were made, and specifically what was said that was alleged to be defamatory, was required.
The Quaids reiterate their contention that the Turicchis cannot pursue a remedy on their alternative theory that they obtained title by virtue of the 2007 Grant Deed, asserting that without rebutting the facts that they sought to obtain title by adverse possession, the court issued its order granting summary adjudication on 4/10/23, and marketable title cannot be obtained by adverse possession until a court decree, they cannot dispute they did not obtain marketable title until that order. The contend that alternative theories cannot be alleged in a single count, and the Turicchis therefore cannot have alleged quiet title under alternative grounds, because if they had, it would not have been subject to summary adjudication. The Quaids also contend the Turicchis waived pursuit of their alternative grounds for title by seeking summary adjudication on an adverse possession theory; they elected their remedies by accepting an actual benefit from an alternative theory, citing Smith v. Golden Eagle Ins. Co. (1999) 69 Cal.App.4th 1371, 1375.) The Quaids contend this case is a “classic example” of “inconsistent remedies.”
The Quaids further assert that the arguments regarding ambiguity or uncertainty are a red herring, since the Quaids do not claim the FAC is vague or ambiguous, but that it fails to allege facts sufficient to constitute a cause of action for slander of title. Further, they contend they did earlier raise the uncertainty issue in filing their motion to dismiss on June 6, 2022, and therefore did not waive it.
The Quaids further reiterate their contention that the cause of action was insufficiently alleged, contending that a heightened pleading standard applies to the cause of action. The Turicchis do not just allege slander of title, but also fraudulent conduct, in alleging that the Quaids willfully and maliciously published false and disparaging statements, motivated by malice and intended to cause the Turicchis injury, entitling them to recover exemplary and punitive damages. Where a plaintiff relies on conduct of greater culpability than negligence, specific facts upon which the charge is based should be pleaded. Further, punitive damages requires a heightened pleading standard.
They contend further that, even under a lower pleading standard, the cause of action is insufficiently alleged. The Turicchis position is that they don’t need to allege specific facts because the Quaids know what they did, but the Quaids have been trying for years to have the Turicchis identify their purportedly slanderous statements, and they have not done so. They could not have superior knowledge of the statements, because they do not know what they are. They contend they cited cases for the position that more particularity is required, which the Turicchis failed to distinguish. They contend that Appel actually supports the Quaids. Even under a lower standard, they are required to allege statements “sufficiently close to the actual words” allegedly made in order to “acquaint a defendant with what he must defend against.”
Finally, the Quaids argue that the motion should be granted without leave to amend, since the Turicchis cannot cure the fatal defect that they did not obtain marketable title until the court granted their motion for summary adjudication. They also cannot alleges facts sufficient to state a cause of action, given that they have had more than 20 months to come up with a single actionable slanderous statement by the Quaids and still do not have anything.
Turicchi objection On November 1, 2023, the Turicchis filed an objection to the new argument regarding election of remedies which was raised by the Quaids for the first time in their reply papers. The Turicchis request that the court disregard the argument, continue the hearing to permit them an opportunity to respond to it, or deny the motion on the basis that the argument fails in any event.
Motion for relief from improperly filed criminal evidence: On August 31, 2023, contemporaneously with their filing of the motion for judgment on the pleadings, the Quaids also filed a motion “for relief from improperly filed criminal evidence,” which seeks a variety of orders, including (1) the removal and/or withdrawal of confidential exhibits, and the demurrers and motions to strike that rely on them, (2) imposition of a discovery order prohibiting all parties and their counsel from communicating ex parte with the entities who provided them with the confidential materials; (3) and order that all parties and counsel destroy copies of the confidential materials, and (4) an order dismissing the slander of title claim against the Quaids, with prejudice.
The motion reiterates many of the arguments set forth in the Quaids’ prior ex parte application. First, that the court should remove or withdraw the exhibits, and the demurrers and motions to strike that rely on them. They contend that the dissemination of the exhibits to other counsel and placing them in the public record was improper, and potentially a criminal violation under Penal Code section 11142. The information came from the WANDA (Warrants Automated Network Directly Accessed) system used by the County of Santa Barbara. They contend the inclusion of the Quaids’ date of birth, physical description, and photographs in the WANDA system “appear” to bring it within the definition of “summary criminal history information,” which would make its dissemination unlawful. They cite Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279, 1289 and Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 761, for the proposition that the least sanction cognizable would be to return to the status quo existing at the time the documents were taken, by removing them from the court record, as well as the demurrers and motions to strike that relied on them.
Second, the Quaids contend that the court should issue a discover order prohibiting the Turicchis and their counsel from communicating ex parte with “the entities” who provided them with the materials, citing Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431, for the proposition that judges have broad discretion in controlling the course of discovery. They assert that the Turicchis and their counsel have had multiple communications with the Sheriff’s Department and District Attorney’s Office, which the Quaids believe included solicitation of confidential information, which continued even after the Quaids requested that it cease. The Quaids request that the court issue an order prohibiting the Turicchis from communicating ex parte with the DA’s office or Sheriff’s office, that all future requests for information or discovery from the County be made via subpoena, and that the Turicchis be ordered to produce all of their communications with the DA’s office or Sheriff’s Office.
Third, the Quaids seek an order requiring the Turicchis and Title Company to destroy all copies of the exhibits in their possession, since they were confidential and improperly obtained, and confirm in writing to the Quaids’ counsel under penalty of perjury that they have done so.
Fourth, the Quaids contend the court should dismiss the Turicchis’ slander of title claim with prejudice, based upon what they contend is a series of improper, harassing, and abusive litigation tactics they have taken against the Quaids. They recite various discovery-related issues (related to the Dennis Quaid deposition, the failure to produce Lannette Turicchi for deposition, filing a motion to quash an SDT issued by the Quaids seeking documents from Fidelity National Title Ins. Company, issuing a records subpoena on AT&T and Verizon seeking information on phone numbers they contend are associated with the Quaids), and contend that the Turicchis have refused to give the Quaids and their counsel any continuances for any reason, but have demanded that the Truicchis be given continuances to accommodate their own schedules. The Quaids conclude that the Turicchis should not be permitted to waste the time and resources of the court or of the Quaids or their counsel, and that the action should be dismissed, citing Cooper v. Superior Court (1961) 55 Cal.2d 291, 301, for the proposition that a court has inherent power to exercise reasonable control over all proceedings connected with the litigation before it to ensure the orderly administration of justice. They assert this includes the power and authority to enter orders protecting parties from abusive and harassing litigation tactics.
Turicchi opposition The Turicchis first contend that the Quaids’ request that the slander of title cause of action be dismissed with prejudice should be denied, because there is no basis for it. Their list of supposedly abusive tactics by the Turicchis instead show abusive tactics by the Quaids. Their motion to stay the Dennis Quaid deposition was denied. With respect to Lannette Turicchi’s deposition, the Quaids agreed in writing that their own depositions would precede hers, and they acted improperly in attempting to violate that agreement. The Turicchis’ objection to certain documents the Quaids sought from Fidelity were entirely proper, and the Quaids make no attempt to show that they were not. The claim that the Turicchis have never given the Quaids’ counsel any continuances for any reason is false, and in fact multiple continuances have been given. The Quaids cite no authority for the proposition that the court may simply dismiss the case with prejudice, citing only Cooper v. Superior Court, supra, which did not involve a motion to dismiss. In response to the Quaids’ previous motion to dismiss, made while they were in pro per, the Court told there that this is not a federal court, and in state court there are limited grounds upon which options to dismiss can be made.
Second, the Turicchis contend that the Quaids’ other requests for relief should also be denied, as there is no basis for them. The supposedly “sensitive biometric information” they object to is information that is already in the public record, in the 3rd Amended Felony Complaint. Further, after the Quaids dismissed the 5ACC, making the motion to strike moot, the Turicchis’ attorneys agreed to stipulate to remove the documents from the court file—but the Quaids’ counsel refused to sign the stipulation. This Court already issued an order in another proceeding quashing a subpoena issued by the Quaids to the Santa Barbara County Sheriff’s Department on grounds of Fugitive Disentitlement. To show they are still fugitives from justice for purposes of the doctrine, the Turicchis’ counsel requested the Senior Deputy District Attorney handling the Quaids’ criminal case to provide documentation to show there are still outstanding warrants for the Quaids, and counsel received the screenshot. There is nothing improper about the documents that were submitted, nor is there any confidential information on them. After filing the screenshot, counsel was contacted by one of the Quaids’ attorneys who said there was no context for the screenshot from the Sheriff’s Department, and asked that the Turicchis also include the cover email. The Turicchis then filed an Amended exhibit Q with a supplemental request for judicial notice, attaching both.
In connection with papers filed by the Quaids in their ex parte application, they submitted false information that a January 26, 2021 email from the Sheriff’s Department stated in writing that Quaid had no outstanding warrants. It said only there were no active warrants, and the sheriff’s department sent a further email explaining that it periodically purges its files of warrants so that the DA’s office can continually assess whether warrants should maintain active. The mail reflected that on that date, the warrant for Randy Quaid’s arrest was purged. After further review, it was reactivated 8 days later and remains outstanding.
Since the Quaids dismissed the 5ACC, mooting the motion to strike, the Turicchis counsel agreed to stipulate that the particular exhibits the Quaids complained of could be removed from the court file, and sent a letter to Mr. Puleo with a draft stipulation. Mr. Puleo responded that he wanted several revisions, to which Granet agreed, and sent a revised stipulation and order, but Puleo responded that he would not sign the stipulation, and instead filed the ex parte application.
The Quaids also seek orders to prevent the Turicchis from communicating with the District Attorney’s or Sheriff’s offices about any issues related to the case, and to destroy copies of any information obtained from them, but cite no authority for such a broad-ranging order. Both cases they cite (Pillsbury, and Slesinger) relate to plaintiff’s removing documents from defendant’s premises, which are not applicable here. Such a broad order would violate Marsy’s Law (Article 1, Section 28 of the California Constitution). The Quaids’ prior citation to Slaieh v. Superior Court(2022) 77 Acl.App.5th 266, for the proposition that Marsy’s Law does not provide any protections in a civil case, overstates the holding in the case.
Quaid reply In reply, the Quaids argue that the court can grant terminating sanctions for gross discovery abuse, and that is such sanction is warranted. They assert the Turicchis’ “persistent and relentless discovery abuse” has culminated in the possession, use, and publication of unlawfully obtained information in a private, criminal database for personal gain. Their tactics are the subject of numerous motions pending before the court, and they still have not produced a single non-time-barred, non-privileged documents showing any slanderous statement, and their pursuit of the claim is a bad act. Their contention that the Quaids cited no authority for the proposition that the court could simply dismiss a cause of action with prejudice ignores the citation of Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 761, in which terminating sanctions were issued because plaintiff hired a private investigator who obtained confidential offices from defendant’s private offices, trash dumpsters, and contracted document disposal company—a case “strikingly similar” to this one. There, as here, the deliberate and egregious conduct was more than adequate to invoke the court’s exercise of its inherent power to dismiss.
The Quaids further argue that their other requests for relief should be granted. The Turicchis’ argument that the information contained in the exhibits is already in the public record misses the point that it was obtained from a criminal database, from which it is a crime to receive and possess information. Prohibited use of CLETS information includes providing the information to another for unauthorized purposes, and querying high profile individuals. The primary harm to the Quaids is the “publication and bolstering of their alleged criminal record,” which they claim is reckless and could have severe adverse consequences because they are public figures.
Any 2014 ruling by this court on the fugitive disentitlement doctrine is irrelevant here. A Vermont court ruled in 2015 that there was no probable cause in the underlying criminal action. Further, the 2014 ruling was directly related to the criminal action, and the fugitive disentitlement doctrine is rarely applied in California, and only where there is a direct relationship and overlap between the underlying criminal action and the civil action, which does not exist here.
The Turicchis argue they agreed to stipulate to remove the exhibits and the Quaids refused, but that misses the point of their possession of the exhibits, and their failure to offer to refrain from ex parte communications; it was an empty offer that only gave the Quaids partial relief
Finally, the Turicchis mischaracterize the Quaids requested remedies as “extraordinary relief,” when in fact the court in Slesinger discussed the court’s inherent power to fasten nontraditional discovery sanctions and ultimately awarded terminating sanctions for discovery misconduct. Further, the Turicchis attempt to distinguish Slaieh ignores the far-reaching language of the court’s holding that the text of Marsy’s Law makes clear that its protections apply in criminal proceedings. Even in that setting, Marsy’s Law does not authorize a victim to obtain non-public information and documents from secure law-enforcement databases.
Turicchi objection On November 1, 2023, the Turicchis filed an objection to the improper argument raised by the Quaids in their reply papers. Despite that the screenshot provided by the Turicchis was from the Sheriff’s Department, the Quaids argued, without support, that the information is part of the California Law Enforcement Telecommunications System (CLETS), which has severe limitations on distribution of information from that system. They cite no evidence that the Sheriff’s Department screenshot has anything to do with CLETS, and the unsubstantiated argument should be disregarded. Further, the Turicchis emphasize that all information on the screenshot is public information, and following dismissal of the 5AC they were willing to stipulate to its removal from the record, but the Quaids refused to sign the stipulation to do so, even after the Turicchis made the changes the Quaids’ counsel requested.
ANALYSIS: For the reasons more fully explained herein, the motion for judgment on the pleadings is denied.
For the reasons more fully explained herein, the motion for relief from improperly filed criminal evidence is also denied in it entirety.
Motion for judgment on the pleadings
1. Authority for motion.
Code of Civil Procedure section 438(b)(1) authorizes a party to move for judgment on the
pleadings. Except as provided by Section 438, the general rules governing demurrers apply, and courts treat the pleadings as admitting all of the material facts properly pleaded, but not any contents, deductions or conclusions of fact or law contained therein. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298.) .) Just as is true with a demurrer, the grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or from any manner of which the court is required to take judicial notice. (Code Civ. Proc., § 438, subd. (d).) However, unlike a demurrer, a defendant’s motion for judgment on the pleadings is limited to contentions that court has no jurisdiction of the subject of the cause of action alleged in the complaint, or that the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B).) If the defendant did not interpose a special demurrer on grounds of ambiguity or uncertainty, defendant has waived any such objections to the allegations of the pleading, and may not raise such contentions in a motion for judgment on the pleadings. (Stockton Newspapers, Inc. v. Redevelopment Agency of the City of Stockton (1985) 171 Cal.App.3d 95, 103.) The motion will be granted only if the pleadings, although uncertain or otherwise defective in form, fail to state a cause of action. (Id. at p. 99.)
A general demurrer [or motion for judgment on the pleadings] based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324.) The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged, and it is not sufficient that the complaint might be barred. (Ibid.) If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer [judgment on the pleadings], and the proper remedy is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment. (Id. at pp. 324-325.) Where the allegations of the complaint or matters of which judicial notice may be taken reveal a statute of limitations bar, however, the plaintiff must “plead around” the defense by alleging specific facts which would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer [and motion for judgment on the pleadings] for failure to state a cause of action. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825; Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922.)
2. Slander of title.
The elements of the tort of slander of title include: (a) publication, (b) without privilege or justification, and thus with malice, express or implied, (c) which is false and was either knowingly so made or was made without regard to its truthfulness, and (d) which causes direct and immediate pecuniary loss. (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263-264.) A privilege, either absolute or qualified, is a defense to a charge of slander of title. (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630.) An allegation of slander is not defective for failure to state the exact words of the alleged slander, and that slander can be charged by alleging the substance of the defamatory statement. (Okun v. Superior Court (1981) 29 Cal.3d 442, 458.)
The privileges are codified in Civil Code section 47. (Smith v. Commonwealth Land Title Ins. Co., supra.) They include publications made: (a) in the proper discharge of an official duty; (b) in any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable by writ of mandamus; (c) in a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information; (d) by a fair and true report in, or a communication to, a public journal of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued; and (e) by a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit. (Civ. Code, § 47.)
Ordinarily, such privilege is an affirmative defense which must be specially pleaded by the defendant, and the burden of proving it is on the defendant. However, if the complaint shows that the communication or publication is one within the classes qualifiedly privileged, the defendant is relieved of that burden, and the plaintiff must proceed to plead and prove that the privilege is not available as a defense in the particular case. (Smith v. Commonwealth Land Title Inc. Co., supra, 177 Cal.App.3d at pp. 630-631.)
A. The Turicchis’ FAC adequately alleges a cause of action for slander of title.
As noted above, the Turicchis’ cause of action for slander of title incorporated the prior allegations their acquisition of title to the property following its purchase from the Bermans in 2007, and the facts also supporting the Turicchis’ acquisition of title through their adverse possession of the property. It then alleged that commencing at least as of November 26, 2016, and continuing thereafter, defendants willfully, maliciously, and without privilege or justification published false and disparaging statements concerning Plaintiffs’ title to the property, including that defendants, and not plaintiffs, were the rightful owners of the property. Their false and disparaging statements have impaired the marketability of the property, in an amount according to proof. The publication of the false statements was motivated by malice and intended to cause injury to plaintiffs, entitling plaintiffs to punitive damages. It alleged that, unless prevented from continuing to make the false and disparaging statements that the Quaids are the owners of the property and not the Turicchis, plaintiffs will suffer irreparable injury in the continued impairment of the marketability of the property. Plaintiffs have no adequate remedy at law to prevent defendants from continuing their wrongful conduct. The FAC prayed for damages for the impairment of the marketability of the property, punitive damages, and an injunction enjoining each of the defendants from continuing to make false and disparaging statements that they, and not the Turicchis, are the owners of the property.
The Quaids’ motion for judgment on the pleadings is based in part upon their contention that the FAC failed to allege facts sufficient to constitute a cause of action for slander of title. The motion contends that a slander of title cause of action must plead the specific facts upon which the charge is based, or the particular facts upon which the willful misconduct of the person is charged, citing Van Meter v. Reed (1962) 207 Cal.App.2d 866, 870. Van Meter is not a slander of title case, and merely holds that where a plaintiff relies on conduct of greater culpability than negligence, specific facts upon which the charge is based should be pleaded. (Ibid.)
The Court does not find Van Meter either relevant or helpful. Nothing about the Turicchis’ allegations alleges a heightened level of culpability over what would be required for any other slander of title claim. Rather, their pleading of the conclusion that defendants acted willfully, maliciously, and without privilege or justification, goes toward the necessary allegation that the publication was made without privilege or justification, since certain of the Section 47 privileges apply only when the publication was made without malice.
Further, the allegations that the Quaids’ conduct was malicious and intended to cause injury to the Turicchis, was despicable conduct carried on by them with a willful and conscious disregard of the rights or safety of others, and/or was despicable conduct subjecting plaintiffs to cruel and unjust hardship, in conscious disregard of their rights [FAC @ ¶ 19], were clearly made to support the claim for exemplary and punitive damages, and do not purport to hold the Quaids liable for slander of title based upon conduct of greater culpability than negligence. The allegations with respect to the elements of the cause of action were set forth in ¶¶ 17-18, the allegations related to punitive damages in ¶ 19, and the allegations to support injunctive relief in ¶ 20.
Certainly, as noted by the Quaids in their reply, a claim for punitive damages requires a heightened pleading standard. However, the insufficiency of the allegations to support a request for punitive damages cannot be reached on a motion for judgment on the pleadings (or on a demurrer, for that matter), since a motion for judgment on the pleadings or demurrer can only address a whole cause of action, and are properly addressed in a motion to strike. No such motion to strike was made, and the fact that the punitive damage allegation may or may not be insufficiently supported by specific factual allegations is currently irrelevant to the case.
The Court finds that the authority cited by the Quaids does not support their contention that a cause of action for slander of title must be specifically alleged.
The Quaids further cite Kahn v. Bower (1992) 232 Cal.App.3d 1599, 1612, fn. 5, for the proposition that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim. However, the California Supreme Court concluded in Okun v. Superior Court (1981) 29 Cal.3d 442, 458, that an allegation of slander is not defective for failure to state the exact words of the alleged slander, and that slander can be charged by alleging the substance of the defamatory statement. Here, the Turicchis alleged the substance of the defamatory statements made by the Quaids, in the form of their public statements that they were the rightful owners of the property, and that the Turicchis were not.
The Quaids further contend that the FAC does not sufficiently allege falsity, contending that doing so necessarily requires pleading facts to show that the Quaids intended for the publication to cause harm and should recognize that it is likely to do so, and knows that the statement is false or acts in reckless disregard of its truth or falsity. Their argument reads far more into the elements of a slander of title cause of action than actually exist. As noted above, an element of the cause of action is that the publication made by the defendant was false and was either knowingly so made or was made without regard to its truthfulness. (Howard v. Schaniel, supra.) The Turicchis alleged that the Quaids willfully made false publications. [FAC @ ¶ 17.] While the allegation uses the term “willfully” rather than “knowingly,” the import of the allegation is sufficient to meet the pleading requirements for that element. Further, to the extent that any allegation of intent is necessary, allegations of “knowledge” or “intent” are allegations of facts which are sufficiently alleged through use of the term, even in causes of action for which specific pleading is required. (See City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803.)
The Quaids contend that the cause of action is deficient because a slander of title claim must allege malice to state a cause of action, citing Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630, but Smith says no such thing, either at p. 630 or otherwise. Its discussion of “malice” was in the context of the interested person privilege of Civil Code section 47(c), not with respect to the pleading of a cause of action for slander of title. Indeed, as noted above, the Smith case held that unless the allegations of the complaint show the communication or publication to fall within one of the classes that are privileged, privilege is an affirmative defense which must be pleaded and proven by the defendant. It is only when the allegations of the complaint show that the publication falls within one of the classes of qualifiedly privileged publications that it will be necessary for the plaintiff to plead and prove that the privilege is not available as a defense in the particular case, for example because of the presence of malice. (Id. at pp. 630-631.)
This discussion also dispenses with the Quaids’ further claim that the FAC does not contain facts sufficient to allow the Quaids to ascertain whether their statements were without privilege or justification. Because the allegations of the complaint do not reveal the publications fall within any potentially privileged class of publications under Civil Code section 47, the obligation to plead and prove the existence of privilege lies with the Quaids, not the Turicchis. The allegation that the publication was made without privilege or justification is sufficient to allege that element of a slander of title cause of action.
The Quaids further contend that the allegations are insufficient to plead damages with the requisite particularity. However, the Court has already determined that specific pleading of slander of title is not required. The Turicchis have alleged that the disparaging statements impaired the marketability of the property, in an amount according to proof. While the Turicchis will need to present admissible evidence at trial to support that allegation, the allegation of damages is sufficient to defeat a motion for judgment on the pleadings.
Finally, the Quaids contend that the Turicchis cannot plead around the statute of limitations. The FAC alleges that the publications commenced at least as of November 26, 2016, and continued thereafter. [FAC @ ¶ 17.] The motion does not discuss what the statute of limitations is for a slander of title cause of action, and merely claims that the cause of action can only be pleaded if plaintiff alleges plainly the date of the “accident” and other facts with reasonable particularity, citing the 1945 case of Corum v. Hartford Acc. & Indem. Co. (1945) 67 Cal.App.2d 891, 895—which is not a slander of title case. The Corum case involved circumstances where the court found that the date of an event was an essential and material allegation. It did not relate to a contention that a cause of action was defectively pleaded because it did not allege a date which would show it was barred by the statute of limitations, and plaintiff did not plead around that defect.
As set forth above, however, a complaint is not deficiently pleaded because it is unclear from the allegations whether or not the claim is barred by the statute of limitations. (See Roman v. County of Los Angeles, supra.) Unless it appears clearly from the allegations of the complaint or matters of which judicial notice may be taken that the action is barred by the statute of limitations, it is a matter for discovery, and plaintiff has no obligation to “plead around” the statute of limitations. (Ibid; see also Gentry v. eBay, Inc., supra; Lee v. Escrow Consultants, Inc., supra.)
The Court finds that the Turicchis’ FAC states sufficient facts to allege a valid cause of action for slander of title. To the extent the motion for judgment on the pleadings is made on the basis that the FAC fails to state sufficient facts to allege a valid cause of action for slander of title, the motion is denied.
B. The Court’s summary adjudication of the quiet title cause of action in the Turicchis’ favor does not defeat their slander of title cause of action.
The Quaids’ motion for judgment on the pleadings is also based upon their contention that because the Court granted the Turicchis’ motion for summary adjudication of the quiet title cause of action in their favor, based upon undisputed facts which established acquisition of title by adverse possession, the cause of action for slander of title is barred. The crux of the argument is that title acquired by adverse possession is not a marketable title until the title is established by judicial decree, and actions that might otherwise constitute slander of title, if committed prior to such judicial decree, cannot support a slander of title claim, for which they cite Howard v. Schaniel (1980) 113 Cal.App.3d 256, 264-265. The Howard court held that a condition precedent to committing the tort was a judicial proceeding establishing of record the title by adverse possession; since that had not been done in the Howard case, the slander of title cause of action necessarily failed.
In opposition to the motion, the Turicchis note that the cause of action to quiet their title in the property was based upon both their acquisition of record title through the Grant Deed which effectuated their purchase of the property from the Bermans, as well as their having fulfilled all of the requirements to support a claim of adverse possession in the time period following their purchase of the property.
In their reply, the Quaids contend—for the first time—that in moving for summary adjudication of the quiet title cause of action on adverse possession grounds, the Turicchis made an election of remedies, and is precluded by the election of remedies doctrine from relying upon the 2007 Grant Deed in support of their cause of action for slander of title.
This was an issue which was clearly known to the Quaids’ counsel at the time they filed the current motion, and should have been addressed in the motion. Their failure to do so creates the impression that the motion was drafted in the manner it was in order to sandbag the Turicchis and deprive them of the ability to respond to the contention. Under such circumstances this Court would ordinarily continue the hearing on the motion in order to provide the opposing party with an opportunity to respond to the new argument. Here, however, doing so proves unnecessary, because the argument fails on its face.
This does not appear to the Court to be an “election of remedies” issue at all, under which a party who seeks inconsistent remedies must ultimately elect which remedy it is seeking. That doctrine arises when the parties are truly seeking inconsistent remedies—for example, in a claim for conversion of personal property, the party may seek recovery of possession of the property, and may also seek damages for its conversion. While it is permissible to allege both possible remedies, the party is not permitted to obtain both, and ultimately will be required to elect between the two. (See 3 Witkin, Cal. Proc. 6th (2023) Actions § 189.)
The case relied upon by the Quaids in support of their contention truly involved inconsistent remedies. In Smith v. Golden Eagle Ins. Co. (1999) 69 Cal.App.4th 1371, the court found that by electing to proceed to trial with their tort cause of action for personal injuries (in which they were unsuccessful), the plaintiffs waived their right to seek damages for the defendant’s alleged breach of an earlier agreement to settle the personal injury action, since allowing them to proceed with the breach of contract action after losing the tort action would be inconsistent and unfair to the defendants.
In the current case, the cause of action to quiet the Turicchis’ title in the property sought only a single remedy, i.e., to quiet their title to the Mountain Drive property. Certainly, the Turicchis alleged that they had obtained record title to the property by two separate means, including through the 2007 Grant Deed from the Bermans, which evidenced their purchase of the property, and through all of their actions from that date forward which also fully met the requirements to establish record title through adverse possession. Obtaining summary adjudication quieting their title to the property has laid to rest the claims made by the Quaids that they are currently the real or proper owners of the property.
In an attempt to support their contention that the summary adjudication of the quiet title cause of action on adverse possession grounds precludes the Turicchis from pursuing the slander of title cause of action, the Quaids’ reply argues that alternative theories cannot be alleged in a single count, citing Steele v. Litton Industries, Inc. (1968) 260 Cal.App.2d 157, 172, and Weil & Brown, Cal. Pract. Guide: Civ. Proc. Before Trial (The Rutter Group 2023), § 6:244 [“Each version of the facts or each legal theory should be pleaded in a separate cause of action in the complaint.”]. It appears that the Quaids failed to read further in the Rutter Group Guide, however, because it provides, at § 6:245, that a complaint which jumbles together different legal theories is subject to a demurrer for uncertainty. (Weil & Brown, Cal. Pract. Guide: Civ. Proc. Before Trial (The Rutter Group 2023), § 6:245.) Here, no demurrer for uncertainty was ever filed, and issues of uncertainty have been waived.
The decision in Steele, supra, also relied on by the Quaids, does little to assist their argument. The case involved inconsistent remedies which were sought in a complaint. The court noted that it is a proper practice for a plaintiff to ask for inconsistent remedies in a single complaint, and that a plaintiff who sets forth alternative remedies in separate counts may dismiss one without prejudice to his right to proceed on the other. The plaintiff in Steele had dismissed his claims for equitable relief, which the court found did not impair his right to seek damages.
The Quaid motion also contends that the Turicchis could not have pled their quiet title cause of action under alternative grounds, as they now claim, because if they had the cause of action would have been defectively pleaded and not subject to summary adjudication. The Quaids’ argument reflects a naivete with respect to the manner in which California trial courts are permitted to handle summary adjudication motions, where more than one theory is alleged in a single cause of action. (See, e.g., Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848.) The argument also provides no support for the contention that, having alleged entitlement to quiet title on multiple grounds, the entry of summary adjudication on the cause of action on one of the grounds precludes any further consideration of the other for any purpose.
In the end, the Quaids’ motion fails to meet its burden of legally establishing that the Turicchis are precluded from proceeding with the slander of title cause of action, arising from the Quaids’ claims to be the rightful owners of the property which were made after the Turicchis obtained record title to the property through the 2007 Grant Deed, but which were made prior to the judicial decree entering summary adjudication of the Turicchis’ quiet title cause of action, made on adverse possession grounds. Because the motion fails to meet its burden on this issue, the motion for judgment on the pleadings made on this ground will be denied.
Motion for relief from improperly filed criminal evidence
The Court continues to be perplexed by the level of utter rage with which the Quaids have pursued this motion, both in the course of its presentation to the Court as an ex parte application, and in this formal noticed motion, which appears to the Court to be grossly out of proportion with any errors which may (or in fact may not) have been committed by the Sheriff’s Office, the District Attorney’s Office, counsel for Lawyers Title, or by counsel for the Turicchis. For the reasons explained more fully below, the Court will deny the motion in its entirety.
1. The removal of any documents in the official court file from public access is properly accomplished through a motion to file under seal.
Court records are presumptively public records, unless confidentiality is required by law. (Cal. Rules of Court, Rule 2.550, subd. (c).) The proper manner to keep confidential records located in the public court file from general public access is to move to have the records filed under seal, using the procedure set forth in California Rules of Court, Rule 2.551. The court is not permitted to permit any record to be filed under seal based solely upon the agreement or stipulation of the parties. (Cal. Rules of Court, Rule 2.551, subd. (a).)
When this matter came before the Court in the ex parte application, the Court suggested that the Quaids simply file a motion to seal the records they claim are confidential. They clearly have declined to do so, and instead not only seek to have the subject judicial notice exhibits removed from the official court file, but also the removal from the official court file of both the demurrer by Lawyers’ Title, and the motion to strike by the Turicchis, which relied upon those exhibits for a single argument for which the warrant status of the Quaids was the critical issue.
The removal of a record from an official court file, rather than seeking to have it sealed, would be a drastic measure—which does not appear to this Court to be even remotely warranted, particularly given the innocuous and ubiquitous nature of the information contained in the subject exhibits. The Court will deny the motion to the extent it seeks to remove any document from the official court file. The Quaids are free to file a motion seeking to have the exhibits sealed, upon an evidentiary showing sufficient to permit the court to make all of the required express factual findings required to seal records, as set forth in Rule 2.550(d).
2. The motion does not definitively establish that possession or dissemination of the limited information contained in the subject exhibits was illegal.
The Quaids’ motion does not come straight out and say that the Turicchis’ possession and use of the active warrant information is criminal, and instead hedged the language to say it is “likely” or “potentially” criminal. (See Motion at 5:8-12, 7:8-10.) An evaluation of the statutes upon which they relied in making the motion makes it apparent that this language was used by the Quaids because their argument that it was criminal required them to make assumptions and logical leaps, and do not in fact make the possession or use of these particular records clearly criminal. In support of their position that the conduct by the Turicchis’ counsel was criminal, the Quaids cite four section of the Penal Code, including sections 11105, 11142, 11143, and 13300.
Section 11105 provides, in relevant part:
(a)(1) The Department of Justice shall maintain state summary criminal history information.
(2) As used in this section:
(A) “State summary criminal history information” means the master record of information compiled by the Attorney General pertaining to the identification and criminal history of a person, such as name, date of birth, physical description, fingerprints, photographs, dates of arrests, arresting agencies and booking numbers, charges, dispositions, sentencing information, and similar data about the person. [Emphasis added.]
Section 13300 provides, in relevant part:
(a) As used in this section:
(1) “Local summary criminal history information” means the master record of information compiled by any local criminal justice agency pursuant to Chapter 2 (commencing with Section 13100) of Title 3 of Part 4 pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, dates of arrests, arresting agencies and booking numbers, charges, dispositions, and similar data about the person. [Emphasis added.]
Sections 11105 and 13300 then proceed to identify those persons or entities to whom the information may be provided by the Attorney General (§ 11105) or the local criminal justice agency (§ 13300).
Section 11142 provides, in its entirety:
Any person authorized by law to receive a record or information obtained from a record who knowingly furnishes the record or information to a person who is not authorized by law to receive the record or information is guilty of a misdemeanor. [Emphasis added.]
Section 11143 provides, in its entirety:
Any person, except those specifically referred to in Section 1070 of the Evidence Code, who, knowing he is not authorized by law to receive a record or information obtained from a record, knowingly buys, receives, or possesses the record or information is guilty of a misdemeanor. [Emphasis added.]
The exhibits submitted by the Turicchis and Lawyer’s Title contain information regarding the gender, height, weight, hair color, eye color, and date of birth of each of the Quaids, information related to their identification. The exhibit submitted by Lawyer’s Title also includes photographs of the Quaids. Because information related to a person’s identification is included in that which would be included within “state summary criminal history information” (§ 11105), or “local summary criminal history information” (§ 13300), the Quaids have extrapolated from this that the Turicchis’ acquisition, possession, and use of the information (in attempting to support their contention that the fugitive disentitlement doctrine should apply to prevent the Quaids from seeking relief in the courts, since they remain fugitives from justice), was “likely” or “potentially” illegal.
In reaching that rather lukewarm conclusion, the Quaids have had to assume that the information was within the ambit of that covered by Penal Code section 13300, without presenting any evidence or authority to the Court that the evidence was part of the local agency’s “summary criminal history information.” Even if there was sufficient evidence before the Court to make that leap, the contention also requires the assumption that the Turicchis’ counsel acted “knowingly”, in seeking and acquiring information he knew it was illegal to have. Because significant questions remain with respect to whether the records in question are in fact improper for the Sheriff’s Department or District Attorney’s office to have provided to counsel for the Turicchis and/or counsel for Lawyers Title, the motion fails to provide factual support for the remedies it seeks.
3. Even had misconduct of the Turicchis’ counsel led to his use of the Exhibit, the innocuous nature of the information at issue is insufficient to warrant any of the orders sought by the Quaids.
Even if the Court were to assume that the information came directly from a source which is considered “local summary criminal history information,” and that it was acquired with knowledge that it was improper for the Turicchis’ counsel to acquire or possess, the information about which the motion complains (see Motion at 7:18-20, referring to the records’ inclusion of date of birth, physical description, and photographs as being what they contend bring the exhibits within the definition of summary criminal history information, and making its dissemination unlawful) is the most innocuous of information, all of which can readily be found with respect to both Randy Quaid and Evi Quaid from a multitude of sources. It is on driver’s licenses or identification cards. It is likely on the head shots Mr. Quaid uses in the course of this acting career. The Quaids themselves acknowledge and readily contend they are celebrities, and they have very public presences, in regular media, on social media, and in the entertainment industry, and their height, weight, hair and eye color, and ages have been frequently on display for the world to see. As further noted by the Turicchis, the felony complaint against the Quaids which contains the identical information, is also a matter of public record.
It is difficult to imagine any harm which could come to the Quaids from having this information (which is buried in exhibits to requests for judicial notice relative to a demurrer and to a motion to strike—matters not generally of great interest to members of the public) in the official court file. Certainly, the screenshots submitted by the Turicchis and by Lawyers’ Title do not appear to be matters for which judicial notice would have been appropriate, and such judicial notice would likely not have been granted by the Court, had the hearings on the demurrers to and motions to strike the Quaids’ 5ACC gone forward. However, a party’s attempt to submit a matter for judicial notice, which the Court finds is not properly the subject of judicial notice, is not an unusual occurrence, and does not establish the party’s bad faith in submitting the matter.
The Quaids contend that Pillsbury, Madison & Sutro v. Schechtman (1997) 55 Cal.App.4th 1279, supports their request that the cross-defendants be required to destroy all copies of the documents. The Court does not find Pillsbury particularly apt. In that case, current and former employees of the Pillsbury firm were engaged in litigation with the firm with respect to employment law claims. The firm brought an action against their attorney, seeking to recover documents which an employee or employees had removed from the firm’s offices without its consent and provided to their attorney for use in the litigation against the firm. The Court of Appeal found that the documents belonged to the firm, and that the employees were not permitted to conduct the self-help gathering of unique evidence (consisting of both original documents and some copies) they knew to be confidential against their employer, outside the parameters of the Discovery Act, and affirmed the trial court’s order that the attorneys return the documents to the firm.
The Quaids do not own the documents at issue, and it is far from certain that they were obtained improperly by counsel for the Turicchis or counsel for Lawyers’ Title. Certainly, information about the Quaids’ warrant status could have been obtained through third party discovery, but it is not impermissible for a party to litigation to conduct its own investigation, interview witnesses, and obtain evidence directly—doing so is not “acting outside the parameters of the Discovery Act,” as claimed by the Quaids. Had the cross-complaint not been dismissed (without prejudice), the question of whether the Quaids were barred from pursuing their 5ACC as a result of the fugitive disentitlement doctrine would likely have been adjudicated in the course of the litigation, and would necessarily have involved evidence of the Quaids’ warrant status. Under the circumstances of this case, the Court cannot find a basis to require destruction of the evidence of their identifying features and warrant status. Neither does there appear to be any justification for an order precluding any contact with the District Attorney’s Office, or the Sheriff’s Department with respect to the case. Certainly, the Court expects any and all such contacts to be appropriate and professional, and will not hesitate to impose appropriate orders and/or sanctions if they are not. However, at the current time, there is no basis to justify precluding any such contact.
4. Imposition of terminating sanctions is unwarranted in this case.
The Quaids’ motion sets forth a list of what they describe as the “improper, harassing, and abusive litigation tactics” undertaken by the Turicchis, for which the Turicchis seek to have the remaining slander of title cause of action against them dismissed. The list includes various discovery issues, and an alleged failure of the Turicchis’ counsel to grant the Quaids any continuances for any reason (something which the Turicchis’ counsel denies). When challenged about the lack of authority for a dismissal (the section of the motion requesting dismissal cited no authority for the request), the Quaids in their reply cite to Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App4th 736, which they contend support the existence of a trial court’s inherent power to terminate litigation for “deliberate and egregious misconduct” when no other remedy can restore fairness. The reply goes so far as to claim that the actions taken in Slesinger are “strikingly similar” to those taken by the Turicchis.
The Court disagrees. In Slesinger, the plaintiff hired an investigator to surreptitiously obtain documents from Walt Disney Co. related to a dispute regarding payment of royalties under a licensing agreement. The private investigator broke into multiple Disney office buildings and secure trash receptacles, and trespassed onto the secure facility of the company with which Disney had contracted to destroy confidential documents, obtaining thousands of documents which were then passed on to the plaintiff, its principals, and it attorneys, who concealed the investigator’s activities from both Disney and the court for many years. There were claims and counter-claims of misconduct throughout the course of the lengthy and bitter litigation between the parties, and Disney ultimately moved for a terminating sanction against plaintiff, alleging that its misconduct—including the actions of the investigator—was pervasive. After a five-day evidentiary hearing, the trial court concluded that no lesser sanction could protect Disney against plaintiff’ use of illicitly-obtained information, and ordered the action dismissed with prejudice. The Court of Appeal affirmed the dismissal, finding that a trial court has the inherent power to issue a terminating sanction for pervasive misconduct, and found that, under the extraordinary circumstances presented in that case, including that the plaintiff had gleaned information from the documents that no other court order could dissipate, the dismissal of the action for deliberate and egregious misconduct was not an abuse of the trial court’s discretion.
Far from being “strikingly similar,” the Court finds that the Slesinger case does not support the imposition of a terminating sanction in this case. The discovery disputes about which the Quaids complain are common occurrences in civil litigation—some relating to disputes which were either resolved in favor of the Turicchis or which have yet to be resolved by the court—and certainly do not support a finding of “deliberate and egregious misconduct.” Similarly, the claim that the Turicchis’ have never granted the Quaids any continuances for any reason is disputed by the Turicchis, whose counsel gave specific examples of continuances which had been provided to the Quaids. Even if they had denied continuances, however, the Court does not see how that could constitute “deliberate and egregious misconduct” sufficient to justify imposition of a terminating sanction. The Quaids have not established that the impacts of any alleged misconduct are so far-reaching that no other court order could dissipate the taint of the Turicchis’ conduct—something that was clearly present in the Slesinger case.
Under the circumstances present in this case, the imposition of a terminating sanction would be an abuse of this Court’s discretion. Consequently, the Court will deny the motion to the extent it seeks such a remedy.